Whilst most of the blogs in this series relate to synchronisation licensing (the use of existing songs and recordings), it’s also worth addressing another key music category in marketing communications: Bespoke Score, commonly referred to in the USA as Original Music. For the purposes of this blog, let’s call it Bespoke Music.

Leaving aside the strategic role of bespoke music or the creative choice of composer, this post will solely examine the rights ownership issue.

There are two routes available to brands when considering the engagement of vendors to supply bespoke music:

Licence Based Engagement

• Vendor retains copyright in composition & sound recording
• Vendor grants a licence to the brand (or their agency) to use composition & sound recording
• Licence will be limited by Term, Territory, Media and specific content pieces
• If the licence expires, the brand must pay additional licence fees
• Composer collects “Writer’s share” (50%) of public performance royalties
• Vendor collects “Publisher’s share” (50%) of public performance royalties

Let’s unpick this:

1. Think of this model as the brand “rents” or “leases” the music although, without the brand’s commission and budget, this music wouldn’t have come into being.
   
2. The vendor, typically a music production company, retains all rights, meaning the vendor retains control. The vendor has achieved control by acquiring copyright from the composer as a condition of representation.
   
3. The licence granted by the vendor restricts how the composition and recording can be used by the brand. Ideally this would be All media, Worldwide, In Perpetuity, which is almost as good as the brand owning the copyright. However, in many cases, vendors will insist on restrictions which limit usage solely to the campaign’s media plan. This is especially true in the UK where many vendors are members of PCAM – a trade body which advocates tightly defined usage licences and a potentially punitive licence fee model.
   
4. Where the bespoke music is required solely for a short tactical campaign, there’s unlikely to be any need to re-license it beyond the initial use. However, where it’s needed long term or could become part of the brand equity, a licence-based model necessitates on-going re-licensing with ever-increasing licence fees.
   
5. Whilst brands will typically measure campaign ROI in awareness, engagement, market share or sales metrics, a licence-based model offers no ROI in terms of royalties. More on this later.

Assignment Based Engagement

American readers of this blog may be confused by the previous section. In the USA, it’s standard practice for bespoke music (aka Original Music in the USA) to be engaged on a work-for-hire (“WFH”) basis. Without delving too far into the legal background of WFH, essentially this means the copyright in the composition, and the recording in which it later becomes embodied, is owned by the brand from the moment of creation.

However, WFH as a legal construct, doesn’t exist in the UK and Europe in the same manner as it does in the US. Instead, under UK and European copyright laws, all rights in the composition are owned by the composer at the point of creation unless, or until, they are assigned elsewhere. The transfer of ownership from the assignor (composer) to an assignee is achieved by way of an assignment of copyright. The assignee could be one of:

• Music publisher (with whom the composer has an exclusive publishing agreement)
• Music production company (where assignment is a condition of composer’s representation)
• Brand or their agency (where assignment is a condition of composer’s engagement)

For the sound recording, in the UK and Europe, copyright is initially controlled by whichever party funded or made arrangements for the recording to be made. Whilst the composer and/or the music production company may have made arrangements, the brand will have ultimately funded the recording studio and production costs. I’d argue therefore that the brand has the greatest claim on ownership of the sound recording. This can be formalised in an assignment of copyright agreement to avoid any ambiguity.

With the above in mind, let’s outline the benefits of an assignment of copyright model for brands:

• Composer assigns copyright in composition
• Composer (or vendor) assigns copyright in sound recording
• Brand acquires copyright in composition & sound recording
• No licence is needed as brand controls all rights in composition & sound recording
• No additional re-licensing fees are payable
• Composer collects “Writer’s share” (50%) of public performance royalties
• Brand collects “Publisher’s share” (50%) of public performance royalties (minus administrator’s commission)

Let’s unpick this:

1. Think of this model as the brand “buys” the music and so becomes the rights owner.
   
2. The brand retains control.
   
3. The brand can use the music in any content, on any platform, in any market, forever, without restriction. This means total flexibility of use.
   
4. There are no additional re-licensing fees to pay, ever.
   
5. For broadcast campaigns, there’s an opportunity for tangible financial ROI in the form of public performance royalties. This is a complex area, involving publishing administration, and the subject of a future blog.
   
6. There’s a further piece of the puzzle to consider: the rights in the recorded performances of session musicians and singers. We’ll also deal with this in a future blog.

What does this mean for brands?

The engagement of bespoke music can be difficult and confusing for brands. Many UK and European creative agencies will tell their clients that only the licence-based model is possible and no vendors will ever agree to assignment of copyright. This is a false narrative.

Resilient regularly secures assignment-based deals for our brand clients who wish to use bespoke music in their campaigns. The path to success depends on vendor selection and how the opportunity is put out to tender in the marketplace.

If you have any questions or would like to learn more about the engagement of bespoke music, get in touch at richard@resilientmusic.com